Driver Calls Cell Phone Law Unconstitutional Fleetwood Man Is First To Be Fined For Hilltown Township Ordinance. He Said He Didn't Know About New Restriction.

April 14, 2000|by DIANE MARCZELY GIMPEL, The Morning Call

The first person cited under Hilltown Township's new law prohibiting drivers from using cellular telephones while driving was found guilty Thursday -- and then began his quest to abolish the law.

Daniel Young, 42, of Fleetwood was fined $100.50 by District Justice Robert E. Gaffney of New Britain Township. He also was fined $127.50 for speeding.

Young said he expected the verdict and vowed to appeal to Bucks County Court.

"We expected to lose on this level because it was a violation of an ordinance," Young said after the hearing. "But it's a wrong law. The law should be on a grander scale. If people believe this law ought to exist, it ought to be passed state by state."

That's because drivers drive from town to town, often without knowing through which town they are passing and what that town's laws are, according to attorney Phil Berg, who is defending Young for free. In his hearing before Gaffney, Young said he not only didn't know Hilltown had a law restricting cell phone use while driving, but he also didn't know he was in Hilltown.

Legislation that aims to restrict cell phone use by drivers statewide has been introduced in Harrisburg by state Sen. Joe Conti, R-Bucks.

Hilltown's law was passed in response to the death of 2-year-old Morgan Lee Pena. The Perkasie girl died in November after the car in which she was riding was struck by a car driven by a man who went through a stop sign while dialing a cellular telephone. The collision happened at Rickert Road and Route 152 in Hilltown.

The following month, Hilltown passed an ordinance that prohibits drivers from using mobile telephones unless both hands are on the steering wheel.

About 12:30 a.m. Feb. 10, Hilltown officer John Gildea pulled over Young, who was northbound on Route 309. Gildea said he saw Young weaving in his lane, passing without using his turn signal and driving at speeds ranging from 40 mph to 69.9 mph, leading him to believe the driver was drunk. He determined when he pulled Young over, however, that he was sober.

When he was making the stop, Gildea noticed Young using a cellular telephone.

Young said after Thursday's hearing that he was calling his mother in Easton, with whom he was staying that night, to tell her he would be late.

Gildea ticketed Young for driving 69.9 mph in a 55-mph zone and for violating the cellular telephone use prohibition.

"I told the officer I did not realize it was a law that you could not use a cell phone," Young testified. "The officer said, `It is here."'

Attorney Berg -- who has previously run for political office, including an unsuccessful bid for the Democratic senatorial nomination in last week's primary -- argued the law is discriminatory because drivers are permitted to do other tasks without having both hands on the wheel, such as eating, drinking, smoking cigarettes and changing the radio station. Furthermore, he said the state's motor vehicle code does not authorize municipalities to enact such legislation.

Additionally, Berg said Young should not have been charged with violating the law if his client had no way of knowing it exists. Hilltown has no road signs notifying the drivers of the law, Berg said, let alone signs on Route 309 to let them know they have entered the township.

Gildea said that posting a sign for every ordinance is a ridiculous notion.

"This is virtually impossible," he said. "There are 234 ordinances in the township."

And he contended that because cell phones are not specifically covered in the state's motor vehicle code, Hilltown is free to pass its own ordinance in that regard.

Gaffney said he ruled against Young based on the facts of the case.

Whether the law is constitutional, he said, is not for him to decide.

"I'll leave the more heady questions to the appellate courts," he said.